R v Mutotole Glass (Criminal Review Case 165 of 1939) [1939] ZMHCNR 4 (31 December 1939)

62 Vol. II] R . v. M U T O T O L E G L A S S . Crim inal R eview Case N o. 165 of 1939. Rogue and vagabond— definition o f suspected person—judgment and sen­ tence should be written at the conclusion o f the evidence. The facts and the law appear in the judgm ent hereunder. For further cases in which are considered the ingredients of a charge under section 158 (3) o f the Penal Code see R . v. Kasonde Mulenga and R. v. Musule Kombe 4 N . R . L . R . 51, and R. v. Mwape Edward Chisando 4 N . R . L . R . 252. R ob in son , A . C . J .: This case was sent to m e for approval of a recommendation for deportation. As the offence o f which the accused was convicted was a misdemeanour only, the recom m endation cannot be approved. The offence was contra section 158 (3) Penal Code in that the person was a suspected person who had no visible means o f subsistence and could not give a good account o f himself. To be deemed to be a rogue and vagabond under section 158 (3), the Crown has to show that the person charged is a well-known suspected person or reputed thief. A suspected person or reputed th ief is a person who, apart from the particular occasion and antecedently thereto, has becom e the object o f suspicion. Ledwith v . Roberts (1936) 3 A . E . R . 570 and in the Law Times, V ol. 182, p. 348. A “ suspected person ” or a “ reputed th ief ” are tw o classes o f persons. The form er expression is suitable only to describe persons who have becom e the object o f sus­ picion, just as a “ reputed th ief ” is a person w ho already has the reputa­ tion o f a thief. The evidence here is that a suitcase was left in the presence o f the accused on an open verandah at an hour not stated, and at 5 p.m . which was probably some hours later, the suitcase had disappeared. He was suspected o f having stolen it, his hut was searched and it was not there. I may say that is a generous filling in o f the story. The evidence as recorded is b y no means so clear. B ut the story set ou t like that is not enough. The House o f Lords in Ledwith v . Roberts disapproved the reasoning o f A vory, J . in H artley v. Ellnor 81 J . P . 201 (1917) when he held accused to be suspected person from the fa ct th at for forty minutes immediately prior to his arrest he had been tapping th e pockets o f pas­ sengers alighting from or boarding tram cars. It follows, therefore, that the evidence is not sufficient to support a conviction contra section 158 (3) Penal Code and the conviction must be quashed. [Vol. II I w ould be grateful if the Magistrate would write his judgment and sentence at the proper place, i.e., at the conclusion o f all the evidence. The record is then in logical sequence. This case file, and others which I have seen, is the absolute reverse. The plea was " Not Guilty ” and the next thing apparently recorded is that the accused is guilty and sentenced, and over the page there is some evidence left in the air.